[hannah]

Because of all the discussions lately on this and other boards about Foti, I give you this case...

LEYSE v. CORPORATE COLLECTION SERVICES INC., No. 03-8491 (DAB) (U.S. District Court, Southern District of New York Sept. 18, 2006)

Did a debt collector violate the Fair Debt Collection Practices Act (FDCPA) by placing pre-recorded telephone calls to a debtor in an effort to collect on the debtor's outstanding debts?

Mark Leyse brought an action under the FDCPA, 15 U.S.C. §§1692 et seq., alleging Corporate Collection Services Inc. (CCS) violated 15 U.S.C. §§1692d(6), 1692e(10) and 1692e(11). According to Leyse, CCS violated these sections of the FDCPA when it placed three pre-recorded telephone calls to him and others in an effort to collect on their outstanding debts.

Prerecorded Message 1 stated as follows: "Hello, this is Michael. I'm calling from CCS. I'm calling re-[sic]-I need a return call tomorrow or today. The number is 800-741-9922. Once doing so, ask for extension 7092. It's urgent that I speak to you today. Thank you." Prerecorded Message 2 stated as follows: "This is Tom Green calling from CCS. I have a very important matter to discuss with you. My phone number is 800-741-9922. Again, my toll-free number is 800-741-9922."

Neither Leyse nor CCS offered the exact wording of Prerecorded Message 3, but that message referred to Kevin String who, according to the message, was an attorney. The parties did not dispute that the caller on Message 3 failed to give a purported name and any information identifying CCS as a debt collector.

Leyse moved for summary judgment, and CCS cross-moved for summary judgment. Leyse also moved for class certification to permit his suit to proceed on behalf of the class of "consumers who, in New York State, received certain telephone calls that were made by or on behalf of [CCS], which, in turn, CCS made on behalf of RCN Corporation and/or Telecom Services of New York, Inc. ["RCN"] ... between October 28, 2002 and the present." CCS opposed Leyse's motion for class certification.

The Court held:

Summary judgment motions granted in part and denied in part; class certification motion denied.

The district court held messages 1 and 2 violated the FDCPA but message 3 was lawful:

Leyse and CCS cross-moved for summary judgment on Count One, which alleges a violation of Section 1692d(6) of the FDCPA.

No fact issue remains as to whether Defendant's use of the moniker "CCS" violated Section 1692d(6). Section 1692d requires a "meaningful" disclosure of the debt collector's identity. At the time that Leyse received the Messages, he had had no prior dealings with CCS. Therefore, the acronym "CCS" could not have had any meaning to Leyse when he received the Messages. The mere reference to "CCS" does not amount to meaningful disclosure.

Leyse and CCS also have cross-moved for summary judgment on Count Two, which alleges a violation of Section 1692e(11) of the FDCPA. Under that provision, the following conduct is prohibited:

The failure to disclose in the initial written communication with the consumer and, in addition, if the initial written communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this provision shall not apply to a formal pleading made in connection with a legal action.

Under 15 U.S.C. §1692e(11).

In their Messages, CCS did not identify themselves as a debt collector. The Messages did not mention anything pertaining to debt collection, or for that matter, anything pertaining to finances. No material issue of fact exists as to whether their pre-recorded messages defied the requirements of Section 1692(11).

The parties also cross-move for summary judgment on Count Three, which alleges violations of Section 1692e(10) of the FDCPA. That provision prohibits debt collectors from using "any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. §1692e(10). Leyse argues that the Messages were "deceptive" because they misstated their urgency.

There is no evidence that Message 3 conveyed any sense of urgency . Message 3 referred to a lawyer, but dropping the name of an attorney without even a vague threat of legal action does not rise to a level of false urgency. Message 3 as a matter of law was not deceptive.

Messages 1 and 2, however, did convey a false sense of urgency. The apparent purpose of Messages 1 and 2 was to be vague enough to provoke the recipient to return the calls in haste. Leaving a message that deceptively entices a consumer to communicate with a debt collector when he is caught off guard is precisely the kind of abuse the FDCPA intended to prevent.

Rule 23(a)(1) of the Federal Rules of Civil Procedure permits class action treatment only when "the class is so numerous that joinder of all class members is impracticable."

Leyse's interrogatories and CCS' respective responses do not state how many calls were placed on RCN's behalf. The number of members in the putative class-that is, the number of consumers called on RCN's behalf-or even an estimation of that number does not appear on the record. What is more, Leyse has not offered any evidence of how many debtors received these Messages within the applicable statute of limitations, or within the time frame stated in his definition of the putative class. The numerosity requirement of Rule 23(a)(1) has not been satisfied.

Source: National Financing Law Digest, 11/01/2006

[centex]

It does not appear to have been the pre-recorded call itself that was unlawful but rather the "false sense of urgency" conveyed by the message in two of the calls. After all, the third call was not found to have been unlawful despite the name-dropping with the name of an attorney.